[1983] OLRB Rep. May 821
2749-82-R Aluminum Brick and Glass Workers International Union, Applicant, v. Trulite Industries Limited, Respondent, v. Group of Employees, Objectors.
BEFORE: R. 0. MacDowell, Vice-Chairman, and Board Members W. G. Donelly and B. K. Lee.
APPEARANCES: P Cavalluzzo. David I. Bloom, Brain Herlich, Don Clifford, Donald A. Edmondson, Blair Briceland and Phil Pamenter for the applicant; Peter Alexander and A. Melnnes for the respondent; Ivan John Stenseth and Todd Whyatt ibr the objectors.
DECISION OF THE BOARD:
I
This is an application for certification.
The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
Having regard to the agreement of the parties, the Board further finds that all employees of the respondent in Mississauga, save and except foremen, persons above the rank of foreman, office and sales staff, constitute a unit of employees of the respondent appropriate for collective bargaining.
II
- This matter originally came on for a hearing before the Board on April 22, 1983. The applicant was represented by counsel, Peter Alexander and Archie Melnnes appeared on behalf of the respondent, and I. J. Stenseth and Todd Whyatt appeared on behalf of a group of employees. It was apparent on April 22nd, however, that the matter would have to be put over for hearing on another day because there were substantial disagreements between the parties on the composition of the bargaining unit, and the status of certain individuals whom the union claimed exercise managerial functions within the meaning of section l(3)(b) of the Act. Moreover, the union also relied on certain unfair labour practice allegations which, it asserted, were of such gravity that it should be certified pursuant to section 8 of the Act. Section 8 reads as follows:
Where an employer or employers' organization contravenes this Act so that the true wishes of the employees of the employer or a member of the employers' organization are not likely to be ascertained, and, in the opinion of the Board, a trade union has membership support adequate for the purposes of collective bargaining in a bargaining unit found by the Board pursuant to section 6 to be appropriate for collective bargaining, the Board may, on the application of the trade union, certify the trade union as the bargaining agent of the employees in the bargaining unit.
- In view of these difficulties, the case was rescheduled for hearing on May 5, 1983. At that hearing, as before, the applicant union was represented by counsel, and Peter Alexander appeared on behalf of the respondent. No one appeared on behalf of the objecting employees although Mr. Stenseth and Mr. Whyatt were both served with notice of the hearing. Apart from section 8 to which we have already referred, the applicant union relied upon the following unfair labour practice provisions of the Labour Relations Act:
No employer or employers' organization and no person acting on behalf of an employer or an employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of his freedom to express his views so long as he does not use coercion, intimidation, threats, promises or undue influence.
No employer, employers' organization or person acting on behalf of an employer or an employers' organization,
(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act;
(b) shall impose any condition in a contract of employment or propose the imposition of any condition in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of a trade union or exercising any other rights under this Act; or
(c) shall seek by threat or dismissal, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to compel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of a trade union or to cease to exercise any other rights under this Act.
- No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.
79.-(2) Where a trade union has applied for certification and notice thereof from the Board has been received by the employer, the employer shall not, except with the consent of the trade union, alter the rates of wages or any other term or condition of employment or any right, privilege or duty of the employer or the employees until,
(a) the trade union has given notice under section 14, in which case subsection (1) applies; or
(b) the application for certification by the trade union is dismissed or terminated by the Board or withdrawn by the trade union.
III
The employer is a manufacturer of insulating glass with plant facilities in Mississauga, Ontario. The company is owned and managed by Peter Alexander and Archie Melnnes. It employs between thirty-two and thirty-five "bargaining unit" employees. The union asserts that on March 23, 1982, the respondent convened a "captive audience" meeting at which intimidatory comments were made, and that on March 24, the respondent discharged four key union supporters.
Phil Pamenter, Rick Mullen, Don Edmondson, and Blair Briceland (the four employees who were discharged and later reinstated some weeks after the filing of an unfair labour practice complaint) all gave evidence about the abortive union organizing campaign. Their evidence was both credible and substantially uncontradicted.
In the third week of March, 1983, there was an active discussion among the employees about the desirability of joining a trade union. There appeared to be widespread support for a union, and, accordingly, Phil Pamenter undertook to contact the applicant. On March 22nd, he and six other interested employees went to the union hall and signed union membership cards. Briceland and Mullen were among those present. At the union hall, Pamenter was given a number of blank membership cards, and it was resolved that he and his colleagues would seek the support of the other individuals who had expressed an interest in joining the union. All of the applicant's witnesses testified that the initial support for the union went well beyond the seven employees who visited its offices on March 22nd.
On March 23rd, the respondent's employees were summoned to a rather unusual meeting held during working hours in the company cafeteria. There had been meetings in the past from time to time to discuss customer complaints and quality control, but according to the employees who gave evidence a meeting on this scale was quite unprecedented. So was the meeting's length, tone and subject matter.
McInnes began the meeting by noting that he had heard that there was talk about a trade union in the plant. He told the employees that if a collective bargaining relationship were established it would "kill the company". This phrase was repeated several times. At one point Melnnes also suggested that if a trade union "came in" the company would have to shut its doors. With a trade union, he said, everything would be restricted. There would no longer be any overtime opportunities, and the employer's previous "open door" policy would no longer be possible.
McInnes outlined the company's financial difficulties in some detail and reminded the employees that, in the circumstances, they were lucky to have a job. He suggested that rather than an outside union, the employees should form their own committee. Such committee could mobilize funds to be put into the company rather than spent unnecessarily on union dues. He told the employees to be patient and that wage increases would be forthcoming at the end of March. When it was suggesed from the floor that some employees might be wary of discussing their complaints or concerns with their employer, the employees were advised that they should have nothing to fear, because the company would not, and could not, take reprisals.
Towards the end of the meeting, Melnnes invited anyone who still supported the union to raise his hand. No one did. Not surprisingly, in the circumstances, even those employees who had signed union cards were disinclined to identify themselves. Pamenter, Mullen, Briceland, and Edmondson all testified that they feared for their jobs — a fear which was not unreasonable given what happened to them the following day.
According to Mullen, the speech had a real impact on the employees. Individuals who had indicated an interest in the trade union prior to the March 23rd meeting, were no longer willing to sign membership cards. Edmondson testified that employees were worried about their jobs just as he was. Briceland testified that after the meeting he didn't know who to trust. He was particularly concerned that employees who thought they might be suspected of having trade union sympathies would be prompted to demonstrate their "loyalty" to their employer by identifying the principal union supporters and that therefore, Briceland's own job would be in jeopardy. This, too, was not an unreasonable concern. Peter Alexander admitted that after the meeting certain employees had in fact come to the office to tell the owners who was supporting the union.
The following day, March 24th, Pamenter, Mullen, Briceland, and Edmondson were all fired. Mullen was told by Peter Alexander that it was obvious that he was unhappy working for the company, and that if he wanted a trade union there were lots of companies down the road. Alexander told Briceland that he was disappointed that he [Briceland] was not "on the company's side". The separation slips prepared by the respondent for all four employees indicate that the reason for their termination is causing dissention amongst employees". In his evidence before the Board, Peter Alexander admitted that he knew the four individuals were union supporters and decided to fire them forthwith when he was told that someone had been threatened in connection with the solicitation of support for the union.
The application for certification was filed on March 31, 1983. Notice of the application was sent to the employer by registered mail dated April 5, 1983. On or about April 8, 1983, the respondent altered the rates of wages for its employees. The respondent has also instituted a programme whereby its employees can "buy in" to the company through a payroll deduction plan and receive share certificates in return for their financial contribution. This was part of a new more comprehensive employee relations strategy which Melnnes and Alexander hoped would be beneficial to both the company and the employees.
On the basis of the evidence before it, the Board makes the following findings:
(a) The respondent's remarks to its employees during the meeting of March 23rd included direct and immediate threats to their job security and continued livelihood should they seek to exercise their statutory right to form or join a trade union. Those remarks constitute a serious breach of sections 64 and 70 of the Labour Relations Act.
(b) The discharge of Pamenter, Mullen, Briceland, and Edmondson was motivated solely by the respondent's belief that they were supporters of the trade union and constitutes a breach of sections 64, 66, and 70 of the Act.
The evidence also strongly suggests that there has been a contravention of sections 79 and 64 of the Act, given the timing of the wage increases and the implementation of the stock option/employee participation programme. However, since these alleged contraventions of the Act were not strongly pressed by the applicant (there is no clear evidence on precisely when the respondent received notice of the application), and are unnecessary for the result we have reached in this matter, it is not necessary to reach any firm conclusion about them.
We turn then to the application of section 8 of the Act.
IV
Certification without a vote under section 8 was designed as a deterrent to illegal employer interference in union organizing campaigns, and a device to provide a meaningful remedy in those cases where the employer's interference undermines his employees' statutory rights, and, in addition, precludes the Board from undertaking its usual determination of employee wishes through a representation vote or an assessment of the union's membership evidence. In other words, section 8 is a kind of "second best" solution, to be applied where the employer's misconduct not only frustrates the union's organizing drive, but also impairs the Board's ability to ascertain whether the majority of the employees do or do not wish to be represented by a union. In order for a union to be certified under section 8 of the Act, the Board must be satisfied that:
the respondent employer has contravened the Act;
the contravention is of such nature that the true wishes of the employees are not likely to be ascertained in a representation vote or otherwise; and
that the applicant union has membership support adequate for collective bargaining.
There is no doubt that the respondent's conduct in this case involves serious contraventions of the Act even though, to some extent, its actions are understandable, and, in the Board's experience not all that unusual in today's troubled times. Peter Alexander testified that he and his partner were deeply concerned about the prospect of dealing with a union, and like many other small businesses in recent years, they have been experiencing severe financial difficulties. A collective bargaining relationship was regarded as but one more burden which they feared would destroy their business. Alexander was also convinced that support for the union was restricted to a small vocal minority of new employees whose presence had disrupted the "family" atmosphere which he had sought to maintain with the employees since the company was formed in 1975 -hence his decision to fire the "agitators". Indeed, Alexander candidly admits that his actions were improper and an overreaction attributable to the financial pressures which he had been under for some months; and we have no reason to doubt the reality of those pressures. The four discharged employees were eventually reinstated pursuant to a without prejudice settlement of their section 89 complaint.
The scenario present in this case is not a new one, and the Board is not unsympathetic to the situation of the small businessman pressed by creditors and high interest rates, and anxious about the very survival of his business. Having no direct experience with collective bargaining and fearing its consequences, such employers sometimes do overreact and interfere with their employees' statutory rights - particularly where, as here, they act precipitately and without professional advice. But our appreciation of the context does not obscure the gravity of what has happened here. In his remarks on March 23rd, Mr. Melnnes told the employees that their jobs would be jeopardized if they opted for trade union representation, that the plant would close, that the business would be "killed", and that certain benefits or opportunities then in place (e.g., overtime) would no longer be available. The very next day four employees identified as supporters of the union were summoned before the co-owner of the company and summarily discharged. It is hardly surprising that, thereafter, there was little enthusiasm or support for the union even among persons who had previously expressed considerable interest. The employer has indicated in the most graphic way possible that employees who support the union do so at the risk of their jobs. We do not think this "message" is likely to be forgotten easily.
We have found that the respondent has contravened the Act; and if ever there was a case where the true wishes of the employees are not likely to be ascertained by the conventional means now available, this appears to be it. But does the applicant have "membership support adequate for the purposes of collective bargaining"? This phrase was added to section 8 (then section 7(a)) in 1975 in place of the requirement that the union have the support of more than fifty per cent of the employees in the bargaining unit. It is clear, therefore, that the phrase "membership support adequate for collective bargaining" is not simply a reference to majority support. Even more striking is the removal of the reference to a representation vote which appeared in the statutory predecessor of section 8. By doing so, the Legislature appears to have contemplated the possible application of the new section 8, even where the applicant's membership support falls below the minimum level required for entitlement to a representation vote (see Lorain Products, 11977] OLRB Rep. Nov. 734). In other words, the section can now apply to situations where the employer's illegal response is so massive and so early as to prevent a trade union from ever attaining the level of support needed for a representation vote.
That is what has happened here. Had it not been for the unlawful interference of the respondent, the applicant might well have garnered at least the thirty-five per cent support necessary for the taking of a pre-hearing representation vote. As it is, the applicant obtained the support of about ten employees on March 22nd - 23rd, but none after the captive audience speech of March 23rd, and the discharges of March 24th. The fact that the union gained the support of about 30% of the potential unit and that a number of employees were interested enough to make their way to the union hall to sign cards lends credence to the evidence of the applicant's witnesses that there was considerable interest in trade union representation, which might have matured had it not been stifled.
The competing policy considerations which underlie section 8, are aptly set out by the British Columbia Labour Relations Board in commenting on a similar provision in its own statute. In International Brotherhood of Boilermakers. Lodge 359 and Forano Limited (1974) 1 Can. L.R.B.R. 13, the board observed at page 20:
...Certification without a vote. . .creates a real disincentive to the use of [intimidatory] kinds of tactics. It does so by depriving the offender of the fruits of its unlawful conduct. ...However, that is just part of the case for this remedy, because the party primarily affected by the certificate is the employees. We can assume that the Legislature did not want to visit the sins of the employer or the union on the innocent employees, who, after all, are supposed to be the beneficiaries of this freedom of choice about collective bargaining. Accordingly, the remedy is to be used where one cannot feasibly determine the true wishes of the employees through the normal means...I think everyone is aware of the risks involved in that kind of certification. In some cases, the employees may have foisted upon them a bargaining representative which they really don't want. Undoubtedly, the remedy must be carefully used...
- As the above comments indicate, the wishes of the employees are always the Board's primary concern, and the remedy is not meant to be punitive; moreover, where support is not really there, the Board would not be placing the union in an enviable position by granting a certificate. Without the support of the employees the union would have a difficult time negotiating a collective agreement, and it would ultimately face the prospect of a termination application. On the other hand, the Board must not hesitate to consider the provisions of section 8 when it is the employer's own misconduct that impairs the Board's ability to ascertain with more certainty what the wishes of the employees really are. As the British Columbia Board went on to say:
...The Board must not be afraid to use it [the certification remedy] when it appears appropriate. The Legislature conferred it for the very good reason that there is another equally serious risk to employee freedom. The majority in a unit may really want collective bargaining but have been intimidated from choosing it openly. The only way they will get it, is for the Board to certify the union...
These policy considerations are clearly reflected in the present application. Some thirty per cent of the employees in the bargaining unit signed membership cards on March 22nd - 23rd and, according to the evidence of the union, a number of others had expressed interest. But the employer's speech on March 23rd and its discharge of four union supporters on March 24th would obviously dissuade any reasonable employee from signifying support for the union lest such support be communicated to the employer and result in the same kind of reprisals visited upon Pamenter, Mullen, Briceland and Edmondson. The obligation of the Board to make this admittedly somewhat speculative assessment about the depth of the union's support only arises because the employer has intentionally destroyed the more reliable and conventional means of ascertaining employee wishes.
In our view, the applicant has demonstrated a substantial and workable "core" of support for the union, and, on the evidence before the Board, this "core" must be regarded as a basic minimum of the trade union's support since there were other individuals who expressed interest and who might be moved to support the applicant once the opportunity for a free expression of views has been established. There is, in addition, no evidence in the present case to suggest that the union's campaign was anywhere close to being "spent" at the point when the respondent employer intervened. Accordingly, on the basis of the evidence before it, the Board finds that the respondent has contravened the Act in such manner that the true wishes of its employees are not now likely to be ascertained and that the applicant has membership support adequate for collective bargaining. That the applicant is therefore entitled to be certified pursuant to section 8 of the Act; moreover, the resolution of the dispute concerning the status of Ray Fillen, Julian Shostal and Robert Hannah cannot affect the union's right to certification. Accordingly, the Board, pursuant to section 6(2) of the Act, hereby certifies the applicant in respect of the agreed bargaining unit set out in paragraph 3. A final certificate must await the resolution of the status of the disputed employees.
The Board also appoints an officer to enquire into and report to the Board upon the duties and responsibilities of Ray Fillen, Julian Shostal, and Robert Hannah whose employee status remains in dispute.